Senate hard-liners start new filibuster: Continuing to trash two
centuries of precedent
By John Nowacki
web posted May 5, 2003
"Priscilla Owen will not be approved . . . people should
understand that and not waste the time of the Senate."
That was the gist of Senator Harry Reid's announcement that the
Democrats are now filibustering the Texas Supreme Court
Justice's nomination to the U.S. Court of Appeals for the Fifth
Circuit. It's the Democrats' second filibuster - they've been
blocking a vote on Miguel Estrada's D.C. Circuit nomination
since February. And it's another groundbreaking moment for the
Democrats, who have already mounted the first filibuster of a
circuit court nominee in the history of the Republic and are now
simultaneously launching the second.
If you can believe the Senate Minority Whip, that's the most
reasonable thing in the world. Observing that President Bush
once owned a baseball team and that small percentages in that
game make for a great record, Reid argued that Bush ought to
be happy that only two of his nominees are being denied a vote.
Let's get this straight. The exceptionally well-qualified Miguel
Estrada is supported by more than enough Senators for
confirmation - including several Democrats - but is denied a vote
because the hard-liners in the Democrat caucus know they
haven't made their case. But that's only fair, right?
Then the exceptionally well-qualified Priscilla Owen, also
supported by more than enough Senators for confirmation -
including at least one Democrat - is denied a vote because, yet
again, the hard-liners in the Democrat caucus cannot make their
case. Why all the fuss?
Well, to begin with, this is nothing less than an attempt to rewrite
the Constitution and toss out two centuries of precedent - a point
Senator Kay Bailey Hutchison of Texas has been making since
Day One of the Estrada filibuster. Wherever the Constitution
requires a supermajority, it says so. Clearly. Confirmations only
need a simple majority, and it's been that way since the
Washington Administration. But filibusters cannot be broken
without 60 votes, and the Democrat leaders have effectively said
that, minority party or not, no one will be confirmed by a simple
majority vote unless they decide it's okay.
Second, the Democrat leadership is fighting to keep the people's
elected representatives from doing the will of those who voted
them into office. Remember how the President's party is
supposed to lose mid-term elections? There was a reason the
American people handed Senate control back to the
Republicans at the first opportunity: Democrat obstruction. And
in his final campaign swing where he highlighted that obstruction,
one of the first examples George W. Bush would raise each time
was the Democrats' systematic obstruction of his judicial
nominees.
Which raises a third point - these are hardly a couple of isolated
cases, not that filibustering nominees can be dismissed so
cavalierly to begin with. There has been a systematic obstruction
of Bush's nominees, circuit court nominees in particular.
Five of his 11 original nominees - sent up on May 9, 2001,
nearly two years ago - still have not had been confirmed. All of
the first nominees put forward by former Presidents Carter,
Reagan, Bush, and Clinton were confirmed, quickly.
During his first two years, when the Senate is usually more
accommodating, President Bush saw just 53 percent of his
circuit court nominees confirmed. In the same periods of their
administrations, all of the previous four Presidents had much
higher confirmation rates for the same level nominees. For Jimmy
Carter, it was 100 percent. Ronald Reagan, 95 percent. George
H.W. Bush, with a Democrat-controlled Senate, saw 96 percent
confirmed. For Bill Clinton, with a Senate of his own party, the
number was 86 percent.
Shortly after Bush's inauguration, liberal Democrats in the Senate
announced that the President's nominees would have to pass a
political litmus test. A little later, they declared that it was up to
otherwise qualified nominees to prove they deserve confirmation,
meaning a refusal to play the political game would not meet the
new burden of proof. Many of the lucky circuit court nominees
who received hearings found themselves subjected to campaigns
of character assassination run by outside groups with lots of clout
but no credibility, and with Judiciary Committee Democrats
acting as willing accomplices in the attacks.
New York Senator Charles Schumer argues that this is all
justified as part of a noble cause. "I would argue that we're
checking an arrogance in the White House . . . [history] will look
at this as fair," he recently declared on the Senate floor. That so-
called arrogance is Bush's decision to nominate men and women
who share his constitutionalist judicial philosophy instead of the
"living, breathing Constitution" views endorsed by Al Gore.
A few weeks ago, columnist Robert Novak reported that some
Republicans are tiring of the confirmation battles and that
Democrat leaders like Ted Kennedy had counted on this all
along. If those Republicans decide to fold, this is what they can
look forward to for the remainder of Bush's presidency,
regardless of whether that lasts one term or two. And these are
just the battles over circuit court of appeals seats. Just imagine
how the Democrats will handle a nominee to the Supreme Court.
Well. Harry Reid has told the Republicans what to do. The
question is whether they're going to sit down and take it.
John Nowacki is Director of Legal Policy at the Free Congress
Foundatio (http://www.freecongress.org).
Enter Stage Right -- http://www.enterstageright.com